Legal thoughts, since 2005.

News Item

February 28, 2007

An interesting constitutional issue has made the news here in Rochester. A local tv station did an "expose" based on library patrons using computers at the public library to access porn in full view of anyone and everyone, kids included. As explained in this article, the County Executive, Maggie Brooks, took a stand on the issue:

This all started last week after an I-Team 10 hidden camera investigation showed library patrons at the central branch viewing on-line sexual content. Library policy allows adults to have unfiltered access to the Internet, but County Executive Maggie Brooks responded to our investigation and wrote a letter to the library director threatening to de-fund the library if it didn't change its policy.

Not having researched the applicable law, my gut instinct was that the library could restrict the web sites that its users accessed, just as it restricts the content available in the books and magazines available to its patrons. And doing so would not necessarily infringe upon the constitutional rights of its patrons. For example, I have yet to stumble upon Penthouse magazine in my local library (but then again, maybe I'm looking in the wrong place!) And,I don't see how the library's refusal to provide me with access to Penthouse violates my constitutional rights. Likewise, I simply don't see how First Amendment rights are implicated by restricting access to pornographic web sites.

So, I was surprised to read this statement from the chair of a committee that was established to look into the issue:

Lovenheim says they are caught in the middle of two positions, the county executive's which comes with a hefty financial consequence and the U.S. supreme court, which he says ruled that unfiltered access is required for adults.

I was truly surprised to read that the Supreme Court had ruled that unfiltered internet access in public libraries was constitutionally required, so I did a little research. And, surprise, surprise--I discovered that just the opposite was true.

In 2003, the Supreme Court held that the federal government may condition a library's receipt of federal funding on its mandatory use of Internet filtering software in United States v. American Library Association, Inc., 539 U.S. 194. After giving the decision a quick read, I was pleased to note that my gut reaction was correct. From the majority decision:

A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worth-while material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block on line pornography any differently, when these judgments are made for just the same reason.

Thus, it seems to me that, contrary to the chairperson's assertions, there's no First Amendment issue here and the library can constitutionally filter the web sites accessible on its computers.

That being said, I haven't researched this issue fully, other than to confirm on Westlaw that the above decision hasn't been overruled. Any constitutional scholars out there care to elaborate or disagree with my take on this issue?

A hug this good just can't be free!--You got that right. "She's a 200-pound-plus hugging machine, but her affection comes with a price. Police are warning men about the "Hugging Bandit," who heartily embraces men coming out of downtown bars and leaves them wallet-less. Dozens of men say they have been victims. Police say others are too embarrassed to admit it." (AP/Yahoo)

February 22, 2007

It must have been a slow year for the DA's office in Stafford, Virginia. At least, that's the only explanation I can come up with for the DA's absolute failure to exercise anything that even resembles discretion in the case of Jessica Hall, a mother of three whose husband is currently serving his third tour of duty in Iraq.

As reported in this AP article, yesterday Ms. Hall was sentenced to 5 years probation after being convicted of the felony of maliciously throwing a missile into an occupied vehicle.

In support of his contention that a 2 year prison sentence was an appropriate punishment, the prosecutor stated:

"It is important to remember that it is not what is thrown but the danger created by that act that Virginia law seeks to protect against."

The "victim" of this crime had this to say about the prosecution (from this AP article):

"I think that this is way too much of a punishment for her actions. This is just to me absolutely ridiculous," Fowle said. Community service would have made more sense, she said.

I suppose that by now you're wondering what sort of "missile" that Ms. Hall threw at the "victim". Good question. It was a cup of ice. Yep. A cup of ice. From the second article above:

On a hot day in July, Hall was driving north on Interstate 95 with her children and her sister, who was six months pregnant and having early contractions. Traffic had slowed to a crawl, when, she said, another car cut her off twice. Angered, she flung the cup into the other car, where it flew across the driver and landed all over his girlfriend...

Hall, who was driving from North Carolina to New York for a family party, said she was trying to keep up with her father's truck when Ballin cut in front of her the second time, causing her to swerve.

The decision to throw ice into the other vehicle? Not too smart. The decision to pursue any criminal conviction--let alone a felony conviction--for her actions? Absolutely ridiculous. The value of a prosecutor who, unlike the ADA in this case, actually understands the meaning of "prosecutorial discretion"? Priceless.

February 20, 2007

Today, the United States Supreme Court granted a writ of certiorari in the New York State Board of Elections v. Torres, 06-766. The Second Circuit's decision that is being appealed from can be found here.

As explained in this AP article:

The Supreme Court on Tuesday agreed to review whether New York state's method of picking trial judges violates the Constitution by giving too much power to political bosses.

Lower federal courts have ruled that the selection process, using political conventions instead of primaries to decide which candidates make the general election ballot, violates the First Amendment rights of candidates and voters...

February 08, 2007

As reported yesterday by the Business Review, Governor Eliot Spoitzer nominated Judith Kaye to continue as the Chief Judge of the New York Court of Appeals:

Spitzer on Wednesday said he would again nominate Judith Kaye as the chief judge of the state Court of Appeals. Her current 14-year term expires next month. If she is confirmed by the state Senate, she would serve a term that will run through the end of 2008, when she will have to step down after reaching the court's retirement age of 70.

January 25, 2007

It sounds like this particular jury pool must have been sipping lots of vodka. This 2005 AP article describes a rather motley crew of prospective jury members in a Memphis case centering around trailer park violence:

Right after jury selection began last week, one man got up and left, announcing, “I’m on morphine and I’m higher than a kite.”

When the prosecutor asked if anyone had been convicted of a crime, a prospective juror said that he had been arrested and taken to a mental hospital after he almost shot his nephew. He said he was provoked because his nephew just would not come out from under the bed.

Another would-be juror said he had had alcohol problems and was arrested for soliciting sex from an undercover officer. “I should have known something was up,” he said. “She had all her teeth.”

Another prospect volunteered he probably should not be on the jury: “In my neighborhood, everyone knows that if you get Mr. Ballin (as your lawyer), you’re probably guilty.” He was not chosen.

PDs Gone Wild!--Well, ok, not really. What actually happened was that an Asst. PD punched his client in the face in an attempt to subdue him and prevent him from obtaining a court bailiff's gun. Chaos ensued only to be brought to a sudden halt by the use of a taser. (Legal Reader)

Vodka-Sipping Juror Causes Mistrial--I'm envisioning an entirely new defense strategy--providing jurors with coffee mugs full of booze as they enter the jury box. It's a guaranteed mistrial every time! (QuizLaw)

Never give an iguana Viagra--The bad news: "Mozart, an iguana with an erection that has lasted for over a week, will have his penis amputated in the next couple of days." The good news: Apparently he's got a spare. Way to go Mozart! (Although not technically crime-related, I figured that at least some of you might think that poor Mozart's predicament violated the Penal Code as explained in this recent post.)

I Really Do Give a Crap--In a bag! Delivered to your congressional office! I do hope that you have enjoyed this exercise of my First Amendment Right to free expression as much as I have, but you'll have to excuse me now while I head off to court so that my lawyer and I can fight this ridiculous and pesky misdemeanor charge of "use of a noxious substance." (Legal disclaimer: By "I", I certainly do not mean "me", Nicole Black. By "I", I mean Kathleen Ensz, some other chick that I definitely do not know.) (Overlawyered)

January 19, 2007

As reported in this New York Post article, yesterday a Manhattan judge ruled that the attempt by a professional stuntman to parachute off of the Empire State Building didn't constitute reckless endangerment in the first degree (Hat tip: The Legal Reader).

The judge concluded that the defendant's actions did not rise to the level of "depraved indifference":

Justice Michael Ambrecht found that Corliss, who has some 3,000 successful jumps under his belt, was too experienced and too obviously concerned with public safety to have met the "depraved indifference" standard.

Corliss' careful planning - the stuntman had factored in wind conditions and traffic-light patterns to ensure he wouldn't land atop moving cars - precludes a finding of recklessness, the judge ruled.

"The circumstances surrounding this admittedly dangerous stunt suggest that rather than indifference to the risk of harm to others, [Corliss] took affirmative steps to ensure the safety of others," the judge wrote.

Corliss, the judge wrote, "clearly intended to glide safely to the ground below."

I found myself agreeing wholeheartedly with the judge until I read this comment from a police spokeperson:

"What if his chute didn't open? He could have killed others along with himself," said police spokesman Paul Browne.

That's a good point. But, are potential outcomes sufficient to raise the mental state to one of "depraved indifference"? Perhaps case law would support that conclusion. Alternatively, is the very nature of the reckless act itself sufficient to meet the mens rea of this crime?

I'm inclined to think that it's not and that the judge ruled correctly. But I'm still not entirely convinced.

Unfortunately, the written decision isn't available online, since it sounds like it would be an interesting read.

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